CHAPTER THREE

LEGISLATION AFTER THE TIME OF THE SAHABAH

The time of the Sahabah came to an end between 90-l00 AH, and
was followed by the time of the Tabi'un whose scholars became
responsible for Fiqh and giving Fatawa. The last of the
Sahabah in Kufah died in 86 or 87 AH. The last one in Madinah,
Sahl ibn Sa'd al Sa'idi, died in 91 AH. The last one in Basrah, Anas
ibn Malik, died in 91 AH (some say 93 AH). The last one in Damascus,
'Abd Allah ibn Yusr, died in 88 AH. The last one of the Sahabah,
'Amir ibn Wathilah ibn 'Abd Allah (Abu Tufayl), died in 100 AH.

Thereafter, those who became responsible for issuing
Fatawa were the freed men Mawali, most of whom had
lived with the Fuqaha' among the Sahabah, such as:
Nafi', the freed man of Ibn 'Umar; 'Ikramah, the freed man of Ibn 'Abbas;
'Ata' ibn Rabah, the Faqih of Makkah; Tawus, the Faqih of the people
of Yemen; Yahya ibn Kathir, the Faqih of Yamamah; Ibrahim al Nakha'i,
the Faqih of Kufah; Hasan al Basri, the Faqih of Basrah; Ibn Sirin,
also of Basrah; 'Ata' al Khurasani in Khurasan, and others. Indeed,
Madinah was unique in having a Faqih from Quraysh, Sa'id
ibn al Musayyab.

These Tabi'un very rarely altered the Fatawa
of the Sahabah from whom they had gained their knowledge;
hence it is difficult to find differences between their methods of
deriving judgements and those of their predecessors. Even so, the
methods of deriving judgements were, at this stage, starting to evolve
and, in the process, to become clearer than ever before.

It is narrated that Hasan ibn 'Ubayd Allah al Nakha'i
said: "I asked Ibrahim al Nakha'i: 'Did you hear from others
all the Fatawa which I hear you giving?' He said, 'No.' I asked
him: 'Then you give Fatawa that you did not hear?' He said:
'I heard what I heard; but when I was confronted with matters
concerning which I had not heard anything, I compared them,
by analogy, with matters which I had heard about.'"31

Among the significant features of this period was the emergence
of differences of opinion between legal scholars on a variety of matters.
This was underscored by two decisions taken by the Khalifah of the
times, 'Umar ibn 'Abd al 'Aziz.

He ordered that practices attributed to the Prophet
(s) should be collected and written down.
Accordingly, the people of every locality wrote down
in books whatever they knew to be a part of the Sunnah32.

He restricted the authority to issue Fatawa, in most
districts, to a few named individuals, as he did in Egypt,
when he named only three people for this purpose.
Interestingly, two of them were freedmen, Yazid ibn
Abu Habib and Abd Allah ibn Abu J'afar, and the third
was an Arab, Ja'far ibn Rabi'ah. When the Khalifah was
questioned about appointing two freedmen and only one
Arab, he answered : "What fault is it of mine if the
freedmen are improving themselves and you are not?"33

In his letter to Abu Bakr Muhammad ibn 'Amr ibn Hazm al
Ansari, the Khalifah explained his reasons for ordering that
the practices attributed to the Prophet (s) should be written
down. He wrote: "Look for whatever Hadith of the Prophet (s), or
Sunnah, or practice you can find. Then write these down for me; for I
fear that this knowledge will pass away with the passing of the scholars."34

AFTER THE TABI'UN:
THE TIME OF THE MUJTAHID IMAMS

This period was described by Wali Allah al Dahlawi as follows:

"The Fuqaha' of the period took the Hadith of the Prophet
(s), the decisions of the early judges, and the legal
scholarship of the Sahabah, the Tabi'un and the third
generation, and then produced their own Ijtihad."

This was the way the legal scholars of those times worked.
Basically, all of them accepted both the Musnad35 as well as
the Mursal36 Hadith."

Moreover, it became their practice to cite the opinions of the
Sahabah and Tabi'un as evidence. Essentially, there
were two reasons for this:

Such opinions were actually Hadith of the Prophet
(s) which had been narrated by one of the
Sahabah or the Tabi'un who had, for fear of misquoting,
not dared to attribute the Hadith to the Prophet (s).

The other likelihood is that such opinions were derived
by the Sahabah from the texts of Hadith, and represented
their own understanding of the Sunnah.

In this respect, of course, the Sahabah were better
than those who came later, because they had known the Prophet (s), and were
thus more capable of interpreting what he had said. Therefore, their
judgements and opinions were accepted as authoritative, except in cases
where they themselves differed, or where their pronouncements were
in clear contradiction to sound Hadith of the Prophet (s).

On the other hand, in cases where two or more Hadith conflicted,
the scholars would refer to the opinions of the Sahabah in order to
determine which of the two Hadith was the correct one. Thus, if the
Sahabah said that a Hadith had been abrogated, or was not to be
understood literally; or if they did not expressly say anything about
a Hadith, but had ignored it, and had not acted in conformity with it,
thus indicating that the Hadith was in some way defective, or that it
had been abrogated, or that its interpretation was other than the literal,
then the Mujtahid Imams would accept their opinions.

When the pronouncements of the Sahabah and
Tabi'un differed on any matter, then each Faqih
would follow the rulings of those from the same region as himself, and
his own teachers, because he would be more able to discern the
authenticity, owing to his familiarity with the narrators, of the
opinions and sayings that reached him on their authority. Likewise,
the Faqih would be better acquainted with their legal methodology.

The legal school of thought based on the opinions of 'Umar, 'Uthman,
Ibn 'Umar, 'A'ishah, Ibn Abbas and Zayd ibn Thabit, and their
companions from among the Tabi'un, like Sa'id ibn al Musayyab (d
93 AH), 'Urwah ibn Zubayr (d 94), Salim (d 106), Ata' ibn Yasar (d
103), Qasim ibn Muhammad (d 103), 'Ubayd Allah ibn 'Abd Allah (d
99), al Zuhri (d 124), Yahya ibn Sa'd (d 143), Zayd ibn Aslam (d 136)
and Rabi'at al Ra'i (d 136), was the school most acceptable to the people
of Madinah. It was for this reason that Imam Malik based his legal
arguments on their teachings.

In the same way, the legal opinions of 'Abd Allah ibn Mas'ud and
his companions, the judgements of the Khalifah 'Ali, Shurayh (d 77),
and al Sha'bi (d 104), and the Fatawa of Ibrahim al Nakha'i
(d 96) were the most acceptable to the people of Kufah.

Commenting on this phenomenon, Wall Allah al Dahlawi wrote:

When Masruq (d 63 AH) followed Zayd ibn Thabit's
opinion concerning sharing out the inheritance between the
grandfather and the brothers [of the deceased], 'Alqamah (d
62) asked him, "Is any of you more knowledgeable than Abd
Allah (ibn Mas'ud)?"

Masruq answered, "No, but Zayd ibn Thabit and the people of
Madinah share the inheritance between the grandfather and the brothers..."

Thus, if the people of Madinah agreed on a matter, the
scholars of the generation following the Tabi'un adopted it
resolutely. This is what Malik meant when he said: 'The
Sunnah concerning which we, the people of Madinah, have
not differed is such-and-such.'

If the early scholars at Madinah had differed concerning
any matter, the later scholars would follow those opinions
which were stronger and more dependable either by virtue
of their having been adopted by a majority of the early
scholars, or of their having been the result of sound legal
analogy, al Qiyas, or which were derived from some text
in the Qur'an or the Sunnah. It is to this process that Malik
refers when he says: 'This is the best that I have heard.' Then,
if the later scholars could find no solution to a problem in
the work of their predecessors, they would themselves turn
to the relevant texts in order to formulate their own legal
opinions.

At this stage, the scholars were inspired to start recording
things in writing. So Malik (d 179) in Madinah, Ibn Abu
Dhi'b (d 158), Ibn Jurayj (d 150?) and Ibn 'Uyaynah (d 196)
in Makkah, al Thawri (d 161) in Kufah, and Rabi' ibn Subayh
(d 160) in Basrah, began to write things down, and they all
followed the same method.

When the Khalifah, Mansur, performed Hajj and met
al Imam Malik, he said: 'I have decided to order that copies
be made of these books which you have written. I will send
a copy to every region of the Muslim world and order the
scholars to act in accordance with them and not refer to any
other works.'

Malik said '0 Amir al Mu'minin, do not do that! Already
the people have heard different legal opinions, and listened
to Hadith and narrations; and they have accepted whatever
reached them first, so that this has contributed to differences
in the prevailing practices among people. Leave the people
of each town with the choice they have already made.'

The same story is told with reference to the Khalifah,
Harun al Rashid, that he wanted to obligate the people to
follow the Muwatta.'

But Malik said to him: 'Do not do that, for the Sahabah
of the Prophet used to differ on the Sunnah. Then they
scattered and settled throughout the Muslim world; and now
their different ways are firmly established.'

... Malik was the most knowledgeable about the
Hadith related by the people of Madinah from the Prophet
(s), and Malik's chains of narrators were the most
reliable. He was also the most knowledgeable about the
judgements of 'Umar and the legal pronouncements of 'Abd
Allah ibn 'Umar and 'A'ishah and their companions from
among the seven Fuqaha'. The sciences of Hadith narration
and Fatawa were based on the knowledge of Malik and those
like him.

Abu Hanifah was the most devoted to the legal
interpretations of Ibrahim al Nakha'i and his colleagues, and
would very rarely transgress their arguments. He was excellent
at producing decisions based on Ibrahim's method, exact in
employing that methodology in order to deal with details of
case law.

If you wish to know the truth about what we have stated,
then summarize the teachings of Ibrahim and his cohorts as
recorded in the following works: Al Athar "Traditions" by
Muhammad al Shaybani, the Jami' "The Compendium" of
Abd al Razzaq and the Musannaf "Compilation' of Ibn Abu
Shaybah, and compare them with Abu Hanifah's formal
opinions. Indeed, you will find that Abu Hanifah departs
only rarely from their way, and even then his opinion will
not differ from the opinions of the jurists of Kufah."37

In fact, al Dahlawi's comments need to be considered. He was very
eager to stress that al Imam Malik and Abu Hanifah, and their
companions, were more or less conforming to the opinions of the
Tabi'un and the Sahabah before them (as opposed to
generating their own Ijtihad), and had not transcended the
jurisprudence of their
predecessors. This, however, is a conclusion with which it is difficult
to agree.

It is well known that there are various approaches to Fiqh; and
each of the Imams adopted a different approach to the subject. It is
not a simple matter to claim that these were drawn from the Sahabah
and the Tabi'un. Consider, for example, Malik's taking the
customs and practices of the people of Madinah as a (secondary) source
for legislation; or Abu Hanifah's use of al Istihsan and
al 'Urf.38

Moreover, neither of them based their arguments on the Fatawa
of the Tabi'un, but rather competed with them, saying: "They were
men [of knowledge] and so are we."

In addition, unlike anyone before them, each had laid down his
own set of conditions for accepting Hadith as authentic.

Moreover, the incidence of an increased circulation of Hadith in
those times, in addition to the appearance of Hadith that had never been
circulated at all, led, in some cases, to legal rulings and positions quite
different from those held by the Sahabah.

RATIONALISTS AND TRADITIONISTS:
AHL AL HADITH
AND AHL AL RA'I

Perhaps this truth may become all the more intelligible when we
mention the emergence of two informal schools of legal thought, the
rationalists or Ahl al Ra'i, and the traditionists or Ahl
al Hadith, and the appearance of differences between them
concerning both source methodology, and issues of case law. While it
is true that both of these schools had their roots in the approaches
of the preceding two generations, it was at this time that their
differences in matters of Fiqh become clear; and it was at this time
that people began grouping themselves on the basis of their
differences in deriving legal points from the sources.

Writers on Islamic legal history emphasize that the rationalist school
of Ahl al Ra'i was an extension of the school of 'Umar and Abd Allah
ibn Mas'ud who, among the Sahabah, were the most wide-ranging in
their use of Ra'y (lit. opinion). In turn, 'Alqamah al
Nakha'i (d. 60 or 70 AH), the uncle and teacher of Ibrahim al Nakha'i,
was influenced
by them. Ibrahim then taught Hammad ibn Abu Sulayman (d 120 AH)
who, in turn, was the teacher of Abu Hanifah.

The same historians stress that the traditionist school of
Ahl al Hadith was a continuation of the school of those
Sahabah whose fear of contradicting the letter of the source texts
Nusus made them circumspect to the point where they never
went any further than the texts. This was the case, by and large, with
'Abd Allah ibn 'Umar ibn al Khattab, 'Abd Allah ibn 'Amr ibn al 'As,
al Zubayr, and 'Abd Allah ibn 'Abbas.

The school of Ahl al Hadith became widespread in the
Hijaz for many reasons, of which perhaps the most important were the great
number of Hadith and other narrations known to the people of that area,
and the fact that the region was more stable after the seat of the
Khilafah had been moved, and most of the political activity
had been transferred, first to Damascus, then to Baghdad. The Imam of
Madinah, Sa'id ibn al Musayyab (d 94 AH), once noted that the people
of Makkah and Madinah had not lost much of the Hadith and Fiqh,
because they were familiar with the Fatawa and reports of Abu
Bakr, 'Umar, 'Uthman, 'Ali (before he became Khalifah),
'A'ishah, Ibn Abbas, Ibn 'Umar, Zayd ibn Thabit and Abu Hurayrah, and
thus did not need to use Ra'i in order to derive law.

The school of Ahl al Ra'i, on the other hand, gained
currency in Iraq. The scholars of this group thought that legal
interpretations of the Shari'ah should have a basis in reason, should
take into account the best interests of the people, and should be
backed by discernable wisdom. Indeed, these scholars felt it their
duty to uncover these meanings and the wisdom behind the laws, and to
make the connection between them; so that if the reasons for any law
were to lose relevance with the passing of time and the changing of
circumstances, the law would no longer be valid. If they found the
reasons behind the law, they would sometimes prefer to cite arguments
based on an analytical treatment of those reasons. Thus, in many
cases, reason would be accorded legalistic preference when such
reasoning conflicted with the evidence of certain categories of Hadith.

The spread of this method in Iraq was helped by the numbers of
Sahabah influenced by the methods of 'Umar. Among them were Ibn
Mas'ud, Abu Musa al Ash'ari, 'Imran ibn Husayn, Anas ibn Malik,
Ibn Abbas and others. The spread was also assisted by the transfer of
the Khilafah to Iraq, and the settling there of 'Ali and his
supporters.

When the sects, like the Shi'ah and
Khawarij, appeared in Iraq, conflict arose and the
fabrication of Hadith became widespread39. Consequently, the legal
scholars of Iraq were forced to lay down conditions for the acceptance
of Hadith, according to which only a few of the reports given by the
Sahabah living in Iraq were acceptable. Moreover, the great
number of legal problems and the constant increase in unprecedented
legal issues in that area were more than could be dealt with on the
basis of reliable Hadith.

So, it was in this way that the Ummah, those who had not become
involved with either the Shi'ah or the Khawarij, was
divided into two groups, Ahl al Hadith and Ahl al
Ra'i; and the conflict between them intensified.

Thus, Ahl al Ra'i often used to criticize Ahl al
Hadith for having little intelligence and less
Fiqh-understanding; while Ahl al Hadith claimed that the
opinions of Ahl al Ra'i were based on no more than
conjecture, and that they had distanced themselves from the necessary
circumspection in those matters of religious significance which could
only be ascertained through recourse to the source-texts.

In fact, Ahl al Ra'i agreed with all Muslims that
once a person has clearly understood the Sunnah, he may not reject it
in favour of what is no more than someone's opinion. Their excuse in
all those cases in which they were criticized for contradicting the
Sunnah is simply that they did not know any Hadith concerning the
matter in dispute, or that they did know a Hadith but did not consider
it sound enough owing to some weakness in the narrators or some other
fault they found in it (a fault which perhaps others did not consider
to be damaging), or that they knew of another Hadith which they
considered sound and which contradicted the legal purport of the
Hadith accepted by others.

Moreover, Ahl al Hadith agreed with Ahl al
Ra'i on the necessity of having recourse to reason whenever a
matter occurs for which there is no specific ruling in the source
texts. Still, in spite of these areas of agreement, the conflict and
tension between the two groups remained acute.